Citation Nr: 9807844
Decision Date: 03/17/98 Archive Date: 04/02/98
DOCKET NO. 96-49 944 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
ATTORNEY FOR THE BOARD
S. J. Janec, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1954 to
July 1975.
This matter comes before the Board of Veterans' Appeals
(Board) from an August 1996 rating decision of the
Huntington, West Virginia Regional Office (RO) of the
Department of Veterans Affairs (VA) which denied service
connection for the cause of the veteran's death as well as
entitlement to Dependency and Indemnity Compensation (DIC)
under 38 U.S.C.A. § 1318(b); and granted eligibility for
Dependents’ Educational Assistance. The appellant is the
veteran's widow. She subsequently requested that the case be
transferred to the Winston-Salem, North Carolina RO.
Additional evidence was submitted and the denial was
confirmed. The appellant was informed of this determination
in an October 1997 supplemental statement of the case.
The Board notes on review of the record that there is some
question whether the appellant qualifies as a surviving
spouse of the veteran as defined by 38 U.S.C.A. § 101(3).
The evidence shows that at the time of a claim for
apportionment in 1993, she was separated from the veteran and
he indicated that she had left him. The RO has not
adjudicated this matter. In the decision that follows, the
Board is not making any determination as to whether the
appellant qualifies as a surviving spouse.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that service connection for the cause
of the veteran's death should be granted. She asserts that
the veteran was treated for high blood pressure and chest
pain in service or within one year of his discharge.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on a review of the relevant evidence, and
for the following reasons and bases, it is the decision of
the Board that the appellant has failed to present evidence
sufficient to justify a belief by a fair and impartial
individual that her claim of service connection for the cause
of the veteran's death is well grounded.
FINDINGS OF FACT
1. The veteran's service-connected disabilities included:
bilateral total hip replacements; bilateral total knee
replacements; and pes planus. These disabilities were
assigned a combined 100 percent disability rating since April
1991.
2. The veteran died on July [redacted], 1996.
3. The immediate cause of death was cardiac arrest.
4. There is no competent evidence showing that the cardiac
arrest was related to the veteran's military service, and
cardiovascular disease was not shown in service or during the
one year presumptive period after the veteran's discharge
from service.
5. There is no competent evidence showing that the veteran’s
death was caused by his service-connected disabilities, or
that these disabilities materially contributed to the
development of cardiovascular disease or his death due to
cardiac arrest.
CONCLUSION OF LAW
The claim of service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. §§ 1310,
5107(a) (West 1991); 38 C.F.R. § 3.312 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records do not show any treatment for or
diagnoses of cardiovascular disease or hypertension. On
examination in December 1963, the veteran's blood pressure
was reported to be 138/86. A clinical record indicated that
the veteran was seen in January 1973 for complaints of pain
in the left anterior chest wall which occurred at rest and
lasted approximately 1-2 hours. The pain was described as
dull and constant, and was unaffected by activity or motion.
His blood pressure was 114/90. The impression was pectoralis
muscle spasm. On a report of medical examination completed
in April 1975, the heart was noted to be normal and the
veteran's blood pressure was reported to be 118/76. On
separation examination in May 1975, clinical evaluation of
the heart was normal and blood pressure was reported to be
118/76.
During the veteran's lifetime, service connection was
established for bilateral total hip replacements, bilateral
total knee replacements, and pes planus. A combined 100
percent rating had been in effect since April 1991.
Private medical records from Guyden Valley Hospital
demonstrated that the veteran was seen in August 1976 for
pain in the left knee. Subsequent visits from June 1978 to
November 1978 noted that the veteran was seen for complaints
of left hip and back pain.
A July 1996 treatment record from Logan General Hospital
reported that the veteran was seen in the emergency room with
no respiration and no pulse. His pupils were fixed and
dilated and there was no response to painful stimuli. A
family member reported that the veteran had been complaining
of chest pain, and when he went to check on him again, the
veteran was unresponsive. It was noted that he was dead on
arrival.
The death certificate reported that the veteran died on July
[redacted], 1996. The immediate cause of death was noted to be
cardiac arrest. No contributing factors were noted.
An April 1997 request for records from Logan General Hospital
was returned with the remark that there were no treatment
records for the veteran from 1976-1977. Several other
requests for information from other sources identified by the
appellant were sent by the RO, including VAMC’s. However, no
additional information was available.
A July 1997 letter from Noor A. Loynab, M.D. reported that he
saw the veteran at his clinic in West Virginia. However, it
had been 12-15 years ago and he was unable to recall the
veteran's treatment. He suggested that Logan General
Hospital may have records.
II. Analysis
The threshold question that must be resolved is whether the
appellant has presented evidence that the claim is well
grounded. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1
Vet.App. 78 (1990). A well grounded claim is a plausible
claim, meaning a claim that appears to be meritorious.
Murphy, 1 Vet.App. at 81. An allegation that the cause of
death is service-connected is not sufficient; the appellant
must submit evidence in support of the claim that would
“justify a belief by a fair and impartial individual that
the claim is plausible.” 38 U.S.C.A. § 5107(a); Tirpak v.
Derwinski, 2 Vet.App. 609, 611 (1992).
A lay person is not competent to make a medical diagnosis or
to relate a medical disorder to a specific cause. Espiritu
v. Derwinski, 2 Vet.App. 492, 494 (1992). Therefore, lay
statements regarding a medical diagnosis or causation cannot
constitute evidence to make a claim well grounded under
38 U.S.C.A. § 5107(a), if the determinative issue is one of
medical causation or medical diagnosis. Grottveit v. Brown,
5 Vet.App. 91, 93 (1993).
In order to establish service connection for the cause of the
veteran’s death, the evidence must show that a disability
incurred in or aggravated by active service was the principal
or contributory cause of death. 38 U.S.C.A. § 1310;
38 C.F.R. § 3.312(a). In order to constitute the principal
cause of death, the service-connected disability must be one
of the immediate or underlying causes of death, or be
etiologically related to the cause of death. 38 C.F.R.
§ 3.312(b). In order to be a contributory cause of death, it
must be shown that the service-connected disability
contributed substantially or materially to cause death, or
that there was a causal relationship between the service-
connected disability and the veteran’s death. 38 C.F.R.
§ 3.312(c)(1). Entitlement to dependency and indemnity
compensation may also be established by showing that at the
time of the veteran's death his service-connected
disabilities had been continuously rated totally disabling
for a period of 10 or more years immediately preceding death.
38 U.S.C.A. § 1318.
Service connection will be granted if it is shown that an
injury or disease was incurred in service. 38 U.S.C.A.
§ 1110, 1131. Service connection may also be granted for
certain chronic disorders, including cardiovascular disease,
if they become manifested to a compensable degree within one
year from the date of discharge from active military service
or for any disease or injury diagnosed after discharge, when
all of the evidence establishes that the disease or injury
was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38
C.F.R. §§ 3.303(d), 3.307, 3.309.
There is no evidence showing that cardiovascular disease was
manifested in service. There is also no indication that it
was manifested to a compensable degree in the one-year
presumptive period following the veteran’s discharge from
active duty. The appellant asserts that the veteran's
treatment in service for pain in the anterior chest wall, as
well as isolated high blood pressure readings, were
harbingers of his subsequent heart trouble. However, on
separation examination in May 1975, the veteran's heart was
noted to be normal and his blood pressure was 118/76. No
definitive diagnoses of either hypertension or cardiovascular
disease were made. Furthermore, there is no competent
evidence to show that the anterior chest wall pain or the
isolated high blood pressure readings were precursors to a
chronic disorder, and the appellant is not competent to
diagnose them as such. See Espiritu, 2 Vet.App. at 494;
Grottveit, 5 Vet.App. at 93. Hence, it is not shown that the
primary cause of the veteran’s death was incurred in or
aggravated by service. The Board notes that the appellant
suggested several avenues of development for records which
might support her claim by providing evidence of continuity
of cardiac symptoms after service or otherwise linking the
cardiovascular disease to service. All these avenues of
development were addressed by the RO without any success.
The death certificate shows that the immediate cause of the
veteran's death was cardiac arrest. No other material or
contributing factors were listed. While the veteran's
service-connected disabilities were extensive, the medical
records do not make any causal connection between these
disabilities and his death. The veteran’s service-connected
disabilities were all musculoskeletal in nature and did not
affect any of the vital organs. Therefore, they are not
considered to have contributed to the veteran’s death which
was primarily caused by cardiovascular disability. See
38 C.F.R. § 3.312(c). To the extent that the appellant
contends that the veteran’s cardiac arrest was caused or
aggravated by his service-connected disabilities, again, she
is not competent to provide such evidence pertaining to
medical causation. Espiritu, supra; Grottveit, supra.
Based on the evidence of record, the Board concludes that the
appellant has not submitted any competent evidence that shows
that a disability that was incurred in or aggravated by
service caused or contributed to the cause of the veteran’s
death. Therefore, the claim is not well grounded.
Additionally, the veteran's total rating was not in effect
for 10 years prior to his death; hence the provisions of
38 U.S.C.A. § 1318(b) are inapplicable.
ORDER
Service connection for the cause of the veteran's death is
denied.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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